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Babcock v. New York State Office of Mental Health

June 8, 2009

RICK BABCOCK, PLAINTIFF,
v.
NEW YORK STATE OFFICE OF MENTAL HEALTH, MID-HUDSON FORENSIC PSYCHIATRIC CENTER, AND HOWARD HOLANCHOCK, DIRECTOR OF MID-HUDSON FORENSIC PSYCHIATRIC CENTER, IN HIS INDIVIDUAL AND PROFESSIONAL CAPACITIES, DEFENDANTS.



The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.

OPINION AND ORDER

MEMORANDUM

In this action, Plaintiff Rick Babcock alleges that Defendants New York State Office of Mental Health ("OMH") and Mid-Hudson Forensic Psychiatric Center ("Mid-Hudson") subjected him to disparate treatment and a hostile work environment because of his gender, and retaliated against him for complaining about this discrimination, all in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (First Amended Complaint ("Cmplt."), First, Second, Third Causes of Action). Babcock also alleges that OMH, Mid-Hudson, and Howard Holanchock,*fn1 the Executive Director of Mid-Hudson, discriminated against him on the basis of his gender and age, and retaliated against him for his opposition to these discriminatory practices, in violation of the New York State Human Rights Law ("NYSHRL"), New York Executive Law § 296 et seq. (Id., Fifth Cause of Action).*fn2 Defendants have moved for summary judgment on all of Babcock's claims. For the following reasons, Defendants' motion (Docket No. 39) is GRANTED.*fn3

DISCUSSION

I. SUMMARY JUDGMENT STANDARD

Summary judgment is warranted only if the moving party shows that "there is no genuine issue as to any material fact" and that it "is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "A dispute about a 'genuine issue' exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008). In deciding a summary judgment motion, the Court "resolve[s] all ambiguities, and credit[s] all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment." Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001).

"It is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases," and that "the salutary purposes of summary judgment -- avoiding protracted, expensive and harassing trials -- apply no less to discrimination cases than to . . . other areas of litigation." Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (internal quotation omitted). As in any other case, "an employment discrimination plaintiff faced with a properly supported summary judgment motion must 'do more than simply show that there is some metaphysical doubt as to the material facts.' . . . [He] must come forth with evidence sufficient to allow a reasonable jury to find in [his] favor." Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).

"Mere conclusory statements, conjecture or speculation" by the plaintiff will not defeat summary judgment. Gross v. National Broad. Co., Inc., 232 F. Supp. 2d 58, 67 (S.D.N.Y. 2002); see also Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008) ("Even in the discrimination context . . . a plaintiff must provide more than conclusory allegations to resist a motion for summary judgment."). Instead, the plaintiff must offer "concrete particulars." Bickerstaff v. Vassar Coll., 196 F.3d 435, 451--52 (2d Cir. 1999) (disregarding plaintiff's Rule 56(e) affidavit because it lacked "concrete particulars"); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) ("To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all Title VII cases.").

The Court is mindful that "direct evidence of . . . [discriminatory] intent will only rarely be available, so . . . 'affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination.'" Holcomb, 521 F.3d at 137 (internal citation omitted) ("We have repeatedly expressed the need for caution about granting summary judgment to an employer in a discrimination case where, as here, the merits turn on a dispute as to the employer's intent."). However, the Court must also "carefully distinguish between evidence that allows for a reasonable inference of discrimination and evidence that gives rise to mere speculation and conjecture." Bickerstaff, 196 F.3d at 448.

As is routine in this Circuit, the Court will treat Babcock's claims under Title VII and the NYSHRL "as analytically identical, applying the same standard of proof to both claims," except with respect to the question of whether any claims are time-barred. Salamon v. Our Lady of Victory Hosp., 514 F.3d 217, 226 n.9 (2d Cir. 2008) (considering sex discrimination claims); see also Schiano v. Quality Payroll Sys., 445 F.3d 597, 609 (2d Cir. 2006) (hostile work environment and retaliation claims are generally governed by same standards under federal and New York state law).

II. THE PARTIES

Defendant OMH is New York State's lead agency responsible for statewide oversight of public mental health services.*fn4 (Defs. R. 56.1 Stat. ¶ 1) OMH also provides inpatient and outpatient services to individuals with long-term mental illness. (Id. ¶ 2) In this capacity, Defendant OMH operates Defendant Mid-Hudson, which is a secure adult psychiatric center that provides a comprehensive program of evaluation, treatment, and rehabilitation for patients with mental illness. (Id. ¶¶ 3--4) As Mid-Hudson's Executive Director, Defendant Holanchock has supervisory authority over the institution's 575-member staff, which includes approximately 280 Security Hospital Treatment Assistants ("SHTAs"). (Id. ¶¶ 9--10, 21)

From 1999 through at least November 2006, Plaintiff Babcock has been employed as an SHTA at Mid-Hudson. (Babcock Aff., ¶¶ 2-3) As an SHTA, Babcock's responsibilities include: supervising and assisting patients with activities of daily living; establishing and maintaining count of patients; exchanging pertinent information on ward management and patient care issues with nurses and SHTA staff; conducting patient room checks; maintaining order and minimizing patient injuries; escorting patients within the facility and to and from outside destinations; and assisting in implementing treatment plans. (Defs. R. 56.1 Stat. ¶¶ 22-- 23)

III. BABCOCK'S DISPARATE TREATMENT CLAIMS

The First Amended Complaint alleges that, from March 2003 through August 18, 2005, Defendants discriminated against Babcock by denying him opportunities for promotional advancement and overtime. (Cmplt. ¶ 23) More specifically, Babcock claims that Defendants denied Babcock such opportunities by:

(1) engaging -- with respect to Ward 21/22, which houses only female patients -- in patterns and practices of "assigning only female SHTAs," "holding female SHTAs over for overtime opportunities and . . . send[ing] male SHTAs home," and generally denying male SHTAs assignments to that ward (Cmplt. ¶¶ 23--25, 27A);*fn5

(2) "routinely assigning [P]laintiff and other male SHTAs to wards with assaultive male patients and giving one-to-one and two-toone assignments with female patients with documented histories of being combative and aggressive to male SHTAs only" (Id. ¶¶ 28--29);

(3) continually filling vacant bid positions at Mid-Hudson with "newly hired female SHTAs instead of first putting the bids out to permanent employees to bid upon based upon rank and seniority" (Id. ¶ 27); and

(4) "failing to approve plaintiff's applications for enrollment in defendants' nursing program" on "several occasions," while on each occasion selecting female SHTAs, "the majority under the age of 40 years." (Id. ¶¶ 30--34; Pltf. Br. 6--14).

A. Applicable Law

The framework for analyzing Title VII cases is well established: [Under] the familiar "burden-shifting" framework set forth for Title VII cases by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), . . . the plaintiff bears the initial burden of establishing a prima facie case of discrimination. If the plaintiff does so, the burden shifts to the defendant to articulate "some legitimate, non-discriminatory reason" for its action. If such a reason is provided, plaintiff may no longer rely on the presumption raised by the prima facie case, but may still prevail by showing, without the benefit of the presumption, that the employer's determination was in fact the result of . . . discrimination. "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff."

Holcomb, 521 F.3d at 138 (citations omitted).

Here, Defendants argue that Babcock's disparate treatment claims should be dismissed because he has not established a prima facie case of discrimination. The plaintiff's burden in establishing a prima facie case "'is not onerous'" -- indeed, it is "de minimis," Beyer, 524 F.3d at 163 -- and is satisfied by "'evidence that raises a reasonable inference that the action taken by an employer was based on an impermissible factor.'" Holcomb, 521 F.3d at 138 (quoting Burdine, 450 U.S. at 253). While a low standard applies to the prima facie case determination, "a plaintiff's case must fail if [he] cannot carry this preliminary burden." Beyer, 524 F.3d at 163.

To establish a prima facie case of gender discrimination, Babcock must show: "(1) that he belonged to a protected class; (2) that he was qualified for the position he held; (3) that he suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent." Holcomb, 521 F.3d at 138. Defendants assert that Babcock cannot establish the third and fourth elements of this test, and that even if a prima facie case of discrimination had been demonstrated, Defendants have articulated legitimate, non-discriminatory reasons for their actions, which Babcock has not rebutted. (Defs. Br. at 7--18)

To satisfy the third element of this test -- showing that he suffered an adverse employment action -- Babcock must offer evidence from which a jury could find that the complained-of act "'created a materially significant disadvantage' in . . . [his] working conditions." Beyer, 524 F.3d at 164 (quoting Williams v. R.H. Donnelley Corp., 368 F.3d 123, 128 (2d Cir. 2004)). Where the complained-of action causes "mere inconvenience," it does not constitute an adverse employment action. Sanders v. New York City Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004) ("[t]o be materially adverse, . . . [the] change in working conditions must be 'more disruptive than a mere inconvenience or an alteration of job responsibilities'"). Moreover, Babcock must "proffer objective indicia of material disadvantage." Beyer, 524 F.3d at 164. He cannot show that he suffered an adverse employment action merely by pointing to his "subjective, personal disappointment[]." Id. (internal quotation omitted).

To establish the fourth element of his prima facie case, Babcock must show that any adverse employment action occurred in circumstances giving rise to an inference of discrimination. A plaintiff may do so by "showing that the employer treated plaintiff 'less favorably than a similarly situated employee outside his protected group.'" Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003). To raise an inference of discrimination, Babcock must "'show [that he] was similarly situated in all material respects to the individuals with whom [he] seeks to compare [him]self.'" Id. (internal quotation omitted).

"Ordinarily, the question whether two employees are similarly situated is a question of fact for the jury." Id. "This rule is not absolute, however, and a court can properly grant summary judgment where it is clear that no reasonable jury could find the similarly situated prong met." Harlen Assocs. v. Incorporated Vill. of Mineola, 273 F.3d 494, 499 n.2 (2d Cir. 2001). To prevail, the plaintiff must at least "provide 'an objectively identifiable basis for comparability' between h[im]self and other employees." Goldman v. Admin. for Children's Serv., No. 04 Civ. 7890 (GEL), 2007 WL 1552397, at *7 (S.D.N.Y. May 29, 2007) (citation omitted). Conclusory statements that "similarly situated" employees outside the protected class were treated more favorably are not sufficient to defeat summary judgment. See, e.g., id. at **7-- 8; Chan v. NYU Downtown Hosp., No. 03 Civ. 3003 (RMB), 2006 WL 345853, at **5--6 (S.D.N.Y. Feb. 14, 2006) (plaintiff's conclusory statements that Caucasian employees were treated differently were insufficient to make out prima facie case of race discrimination because plaintiff did not "identify any similarly situated individuals outside her protected class who were treated preferentially"); Abato v. New York City Off-Track Betting Corp., No. 03 Civ. 5849 (LTS), 2007 WL 1659197, at *6 (S.D.N.Y. June 7, 2007) (conclusory statements that "similarly situated younger women" were treated differently, in the absence of any "specific information" concerning those individuals, were "insufficient to present a genuine issue of material fact").

With respect to his first three disparate treatment claims, Babcock has offered no evidence that he suffered an adverse employment action, much less that such an action arose in circumstances giving rise to an inference of discrimination. Moreover, even if a reasonable jury could find that Babcock established a prima facie case of gender discrimination with respect to his first and third disparate treatment claim -- thereby shifting the burden of production to the employer -- Defendants have articulated "legitimate, non-discriminatory reason[s]" for their actions, which Babcock has not rebutted.*fn6 See McDonnell-Douglas Corp., 411 U.S. at 802. Finally, with respect to Babcock's fourth disparate treatment claim -- which concerns Defendants' delay in admitting him to the nursing grant program -- Babcock has not established a prima facie case of gender-based discrimination because he has not shown that he he was similarly situated in all material respects to the female candidates who gained admission to the program before him. Even if Babcock had established a prima facie case with respect to his fourth disparate treatment claim, he has not rebutted the legitimate, non-discriminatory reasons that Defendants have articulated for their actions. Accordingly, Defendants are entitled to summary judgment on Babcock's disparate treatment claims.

B. The Ward Assignment Claims

1. Assignment of SHTAs to Ward 21/22, the All-Female Ward

Babcock alleges that Ward 21/22 at Mid-Hudson "houses only female patients," who "[t]raditionally . . . require more staffing and thus, Ward 21[/]22 creates more opportunities for overtime." (Cmplt. ¶ 24) With respect to Ward 21/22, Babcock's claims fall into two time periods: (1) March 2003 through August 2004; and (2) August 2004 through August 18, 2005. During the former period, the Complaint alleges that Defendants "engaged in a pattern and practice of assigning only female SHTAs to Ward 21[/]22," "refused to permit assignments of any male SHTA to Ward 21[/]22," and "engaged in a pattern and practice of holding female SHTAs over for overtime opportunities and would send male SHTAs home." (Id. ¶ 25) During the latter period, Babcock alleges that Defendants engaged in a practice of permitting only one male SHTA to be assigned to Ward 21/22. (Id. ¶ 27A) Because this practice allegedly "varie[d] with regard to each shift" and because "at no time [were] male SHTAs assigned to Ward 21[/]22 for each of the three tour shifts of duty," Babcock asserts that he "continue[d] to be denied overtime and promotional opportunities." (Id.)

Babcock has not demonstrated, however, that he suffered an adverse employment action with respect to the all-female ward. First, Babcock has offered no evidence that he was denied overtime and promotional opportunities with respect to Ward 21/22. Indeed, Babcock's Rule 56.1 Statement does not even mention the all-female ward. Second, the undisputed record reveals that Babcock received an extraordinarily high amount of overtime compensation during the relevant time periods. From April 3, 2003 through March 31, 2004, he was paid $40,990 for 1,385.50 overtime hours, and between September 16, 2004 and September 14, 2005, he was paid $53,936 for 1,703.75 overtime hours. Babcock was the fourth highest overtime earner among Mid-Hudson's 575-member staff. (Defs. R. 56.1 Stat. ¶¶ 40--41). Finally, Babcock's testimony confirms that he worked an "abundance of overtime," that he had a reputation as "not just an overtimer, [but] an overtime killer," and that "there's only one other person at my facility that does more overtime. . . ." (Babcock Dep. 141:8-9, 144:24-25, 145:9-10; see Defs. R. 56.1 Stat. ¶ 38) Accordingly, Babcock has failed to "proffer objective indicia of material disadvantage," Beyer, 524 F.3d at 164, and has likewise not addressed the substantial and undisputed record evidence demonstrating that he had more overtime opportunities than almost all other Mid-Hudson employees during the relevant period.

The record also establishes -- contrary to Babcock's claims -- that Mid-Hudson does not require that only female SHTAs are assigned to female patients, but rather only requires that at least one SHTA who is of the same gender be assigned to patients on each ward. (Defs. R. 56.1 Stat. ¶¶ 31-32; Berridge Decl., Ex. G) The purpose of this requirement is to provide patients with "intimate personal care" (id. ¶ 31), and this Court has previously held that this policy satisfies the "bona fide occupational qualification" exception to Title VII, because it "strikes a balance between the patients' privacy interests and the right of SHTAs to bid for a position." Jennings v. New York State Office of Mental Health, 786 F. Supp. 376, 387 (S.D.N.Y. 1992) ("Thus, we find that the requirement that at least one SHTA of the same gender as the patients be assigned to the ward is permissible under Title VII.").

With respect to assignments of voluntary overtime, it is also undisputed that Mid-Hudson assigns SHTAs in the sequence that they appear on a computer-generated list that ranks SHTAs according to hours worked and seniority; the employee generating the list cannot control this sequence, which is determined by computer software. (Defs. R. 56.1 Stat. ¶ 34) Upon selecting SHTAs for voluntary overtime, Mid-Hudson places them where they are needed in the facility. (Id.) If there is a need for additional overtime workers after the voluntary list is exhausted, the same computer software generates a mandatory overtime list that ranks SHTAs according to mandatory overtime shifts previously worked and seniority. (Id. ¶¶ 35--36)

In sum, Defendants are entitled to summary judgment with respect to the all-female ward claim because Babcock has offered no evidence that he suffered an adverse employment action. Even if Babcock had established a prima facie case of discrimination with respect to Mid-Hudson's policy of assigning at least one SHTA of the same gender to patients in each ward, Babcock has not rebutted Defendants' legitimate non-discriminatory rationale for this policy -- namely, Mid-Hudson's patients' privacy interests.

2. Alleged Assignment of Male SHTAs to Aggressive Patients

The First Amended Complaint also alleges that Defendants discriminated against Babcock based on his gender by "routinely assigning [him] and other male SHTAs to wards with assaultive male patients, and giving one-to-one and two-to-one assignments with female patients with documented histories of being combative and aggressive to male SHTAs only."*fn7 (Cmplt. ¶ 28) As a result, Babcock contends that he and other male SHTAs "have been physically injured while performing their duties. (Id. ¶ 29) He further alleges that "Defendants have a pattern and practice of not assigning similarly situated female SHTAs to wards with aggressive or assaultive male patients" and instead assign them "to wards or individual female patients who are not aggressive or assaultive." (Id.)

Once again, Babcock has not addressed this claim in his Rule 56.1 Statement, in his memorandum of law, or in his other submissions, while the Defendants have offered undisputed evidence that they have no such policy. (Defs. R. 56.1 Stat. ¶¶ 84-86) Because Babcock has neither offered evidence in support of the First Amended Complaint's allegations nor rebutted Defendants' evidence showing that there was no adverse employment action in this regard, Defendants are entitled to summary judgment on this claim.

C. Alleged Failure to Follow Bid Process Concerning Vacant Positions

Babcock alleges that between March 2003 and August 18, 2005, he and all other male SHTAs were denied opportunities for overtime and promotional advancement because Defendants "continually fill[ed] vacant bid positions within the facility, including positions on Ward 21[/]22, with newly hired female SHTAs instead of first putting the bids out to permanent employees to bid upon based upon rank and seniority." (Cmplt. ¶ 27) In moving for summary judgment, Defendants contend that Babcock mischaracterizes the bidding process, that the bids do not relate to promotions, and that the New York State Department of Civil Service chiefly determines the candidates for promotion. (Defs. Br. 10--12)

Babcock's disparate treatment claims based on Defendants' handling of the bid process will be dismissed. Babcock has offered no evidence in support of this claim and has in no way rebutted Defendants' evidence showing that bids have no bearing on promotions of SHTAs.*fn8 (Defs. R. 56.1 Stat. ¶ 43) The State Civil Service Department's policies, and not MidHudson's bidding process, determine SHTA promotions. When a Senior SHTA position becomes available, Mid-Hudson notifies OMH's Centralized Unit, which then contacts the New York State Department of Civil Service ("DCS") to obtain a list of candidates. (Defs. R. 56.1 Stat. ¶ 45) DCS forwards to the Centralized Unit a list of candidates who have taken the required Civil Service Exam, are designated as active, and have expressed interest in the geographic area in which Mid-Hudson is located. (Id. ¶ 46) OMH's Centralized Unit then sends out "canvass" letters to candidates, who must state an interest in the position within fifteen days. After receiving responses to the canvass letters, the Centralized Unit sends Mid-Hudson a list of acceptors. (Id.) With respect to this list, Civil Service regulations permit Mid-Hudson to consider for promotion the candidates who received the highest Civil Service Exam score; Mid-Hudson may consider candidates with lower scores only when there are fewer than three candidates with the highest score. (Id. ¶ 47) Neither OMH's Centralized Unit nor Mid-Hudson have any control over which employees are on the Civil Service List. (Id. ¶ 48)

Moreover, even if Babcock's failure to obtain a promotion to Senior SHTA was attributable to Defendants, the circumstances regarding SHTA promotions do not give rise to an inference of discriminatory intent. It is undisputed that between March 2003 and August 2005, all six Mid-Hudson employees who were promoted from SHTA to Senior SHTA were men. (Id. ¶ 49) With respect to the civil service lists generated for these six Senior SHTA vacancies, Babcock's name appeared on only the most recent list dated June 6, 2005, which Mid-Hudson used to award a promotion on August 4, 2005. (Id. ¶ 50) This list shows that Babcock's civil service exam score was 87.5, while the SHTA Mid-Hudson promoted to Senior SHTA had a score of 95. (Id.)

In sum, Defendants are entitled to summary judgment with respect to the "vacant bid positions" claim because Babcock has failed to establish a prima facie case of discrimination.

D. Allegations Concerning the Registered Nurse Grant Program

Babcock alleges that Defendants have discriminated against him based on his gender by failing to approve his applications for enrollment in Defendants' nursing grant program (the "RN Grant Program") on "several occasions," while on each occasion selecting female SHTAs for admission to the program.*fn9 (Cmplt. ¶¶ 30--31)

Defendants argue that Babcock has not established a prima facie case of gender-based discrimination because he has not demonstrated "that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent." Holcomb, 521 F.3d at 138. In this regard, Defendants argue that Babcock has failed to show "that he was similarly situated to higher ranked candidates in all material respects," that he relies on a non- probative hearsay statement by a non-decisionmaker, and that Babcock has failed to "demonstrate any nexus between omissions or mistakes in the grant evaluation and Defendants' alleged discriminatory intent." (Defs. Reply Br. 3--7) Defendants also note that Babcock was accepted into the RN Grant Program on August 19, 2005, that he accepted placement in the RN Grant Program, and enrolled in nursing school. (Defs. Br. 12--13; Defs. R. 56.1 Stat. ¶¶ 52--53) Even if Babcock has established a prima facie case of gender-based disparate treatment, Defendants argue that they have set forth legitimate nondiscriminatory reasons for their actions, which Babcock has not rebutted.

Because Babcock has not established that he was similarly situated in all material respects to the female candidates for the RN Grant Program who were admitted to the program before him, he has not established a prima facie case of gender discrimination. Moreover, even if Babcock had established a prima facie case of gender discrimination, Defendants have provided legitimate non-discriminatory reasons for their actions, and Babcock has not shown that a reasonable factfinder could conclude that Defendants' determinations were the result of gender-based discrimination.

1. Undisputed Facts Regarding the Ranking and Selection of Mid-Hudson Candidates for the RN Grant Program

Defendant OMH's RN Grant Program provides funding to train select OMH staff to become licensed Registered Nurses. (Defs. R. 56.1 Stat. ¶ 51) In early 2002, OMH surveyed staff at its four upstate facilities, including Mid-Hudson, to ascertain who would be interested in participating in the RN Grant Program. (Id. ¶ 56) In 2003, OMH surveyed those who had expressed interest to determine if they remained interested. (Id.) Those candidates who had at least a high school diploma or GED were interviewed by Darleen Walsh, the OMH employee who administered the RN Grant Program. (Id. ¶ 57; Pltf. R. 56.1 Stat. ¶ 9) After interviewing the candidates, Walsh ranked them in order of priority for placement in the RN Grant Program; she based her rankings solely on the cost and length of time for each candidate to complete the program. (Pltf. R. 56.1 Stat. ¶ 9) Among the ten Mid-Hudson candidates, Walsh ranked Babcock tenth because his training would cost the most, given that he had the most remaining credits necessary to complete training as a Registered Nurse. (Id. ¶¶ 9-10; Defs. R. 56.1 Stat. ¶ 62) From highest to lowest priority for placement, Walsh ranked the ten Mid-Hudson candidates in the following order: (1) Pedro Santos; (2) Gloria Bullock; (3) Amelia MacDonald; (4) Gwendolyn Bailey; (5) Stacey Schoonmaker; (6) Richard McPhillips; (7) Karen McPherson; (8) Andrea Heinzel; (9) Kathleen Miller; and (10) Rick Babcock. (Pltf. R. 56.1 Stat. ¶ 10)

Walsh then forwarded her rankings to Donna DeLusso, Mid-Hudson's Human Resources Director ("HR Director"). (Defs. R. 56.1 Stat. ¶¶ 11, 61) DeLusso, Director of Nursing Elsbeth "Kitty" Mackay, and the former Acting Chief SHTA Joe Tirado (the "Mid-Hudson Committee") then discussed how to rank the ten candidates. The Mid-Hudson Committee considered a number of factors, including a recommendation from each candidate's supervisor, the candidates' personal history and employment history at Mid-Hudson, their length of state service, and any criminal background that might bar licensure as a Registered Nurse. (See id. ¶¶ 18, 59, 63, 65; Pltf. R. 56.1 Stat. ¶ 11) After discussing the candidates with Mackay and Tirado, DeLusso ranked the ten candidates on Mid-Hudson's behalf, and ranked Plaintiff tenth out of ten. (Defs. R. 56.1 Stat. ¶¶ 66--69; Pltf. R. 56.1 Stat. ¶ 12) From highest to lowest priority for placement, DeLusso's rankings were as follows: (1) Karen McPherson; (2) Stacey Schoonmaker; (3) Gloria Bullock; (4) Andrea Heinzel; (5) Gwendolyn Bailey; (6) Kathleen Miller; (7) Amelia MacDonald; (8) Pedro Santos; (9) Richard McPhillips; and (10) Rick Babcock. (Pltf. R. 56.1. Stat. ¶ 12)

DeLusso testified that she ranked Babcock tenth because his department head, Tirado, had rated him ninth out of the ten candidates; Director of Nursing Mackay stated that Babcock should not be admitted to the program;*fn10 Babcock's personnel folder contained a counseling memo;*fn11 and a printout of Babcock's computerized state employment record listed a suspension in his civil service history. (Defs. R. 56.1 Stat. ΒΆ 69) DeLusso ranked the other two male candidates, Pedro Santos and Richard ...


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